Rule Sets a Precedent for Possible Future Federal Government Pollution of Public Lands, Independent Institute Claims

Takoma Park, Maryland: The Environmental Protection Agency’s final rule for the proposed nuclear repository for high level radioactive waste, issued today, abandons protections for drinking water even while retaining the formalism of the Safe Drinking Water Act, according to the Institute for Energy and Environmental Research (IEER). The EPA created an exclusion zone of 18 kilometers (about 11 miles) around the repository in which the safe drinking water rules would not apply. The rule would apply beyond the exclusion zone.

The 18-kilometer zone was selected because it corresponds to the limit of the Nevada Test Site, which the EPA says is federal land (but which is also claimed by the Western Shoshone tribe). The limit of the exclusion zone is only about a mile-and-a-half from the small community of Lathrop Wells, and just eight miles from an agricultural area where water from the aquifer is used for irrigation today.

“This is the first time that the EPA has exempted a portion of a currently used aquifer from the safe drinking water act,” said Dr. Arjun Makhijani, president of IEER. “The EPA’s exclusion zone concept is very dangerous. Much of the land in the West is under federal control. This exclusion zone implies that the federal government can decide to exempt itself from rules that apply to everyone else whenever it wants.”

The power of eminent domain makes the reasoning behind the exclusion zone even more questionable. “If private water supplies are polluted or threatened with pollution by industry or government in the future, and the federal government believes that enough is at stake, what is to prevent it from using its power of eminent domain to take over the land and the water resources beneath it? While this seems to be one small exclusion in a desert area in the vast West, it will undermine the safe drinking water act as no rule has done before,” said Dr. Makhijani. “It is a misguided rule that should be rescinded.”

There has been intense pressure from the nuclear industry to license Yucca Mountain, for which the rules have been relaxed twice before, according to IEER. In the late 1980s, the EPA issued a rule for high-level waste repositories, but it soon became clear that Yucca Mountain could not comply with one part of it, a judgment confirmed by the EPA Science Advisory Board in 1994. The problematic part of the rule sought to limit emissions of carbon-14, a radioactive from of carbon, from the repository. Instead of seeking a new site that could meet all then-existing rules, Congress asked the National Academy of Sciences to advise the EPA on how to set a special rule for Yucca Mountain.

“I call it the double-standard standard,” said Dr. Makhijani. “The government’s approach, under intense industry pressure seems to be: If Yucca Mountain can’t meet the rule, just change it. In the 1990s it also became clear that Yucca Mountain probably could not the meet the Nuclear Regulatory Commission’s licensing standards, issued in the 1980s. So new rules for licensing were then issued.” A decision on the suitability of the site is expected from the Department of Energy later this year or early next year.

According to IEER, other problems with the rule issued today include:

A decision to limit radiation protection to 10,000 years, even though it is officially estimated the maximum doses are likely to occur 100,000 or more years from now. The 10,000 year limit for regulation was set despite at least two reports from the National Research Council, including the 1995 report mandated by Congress on Yucca Mountain standards, that advised that the dose should be calculated at the time of the estimated peak occurrence of contamination. “The 10,000 year limit is an arbitrary and bureaucratic rejection of the advice of the National Research Council,” said Dr. Makhijani.
The abandonment of conservative principles of radiation protection which are used throughout the world. They are based on the common sense idea that lifestyles far into the future cannot be predicted and, that therefore, future populations should be protected by assuming that the most exposed person in the future will be a subsistence farmer.
The rule does not consider doses from other pollution present at the Nevada Test Site.

“Yucca Mountain is a poor site and the government should stop wasting money on it and start afresh,” Dr. Makhijani said. IEER has published extensively on nuclear waste, including an alternative waste management plan and principles for doing repository research.